Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA318491, Patricia J. Titus and Bob S. Bowers, Jr., Judges. Affirmed.
Law Office of Anthony W. Tahan, Anthony W. Tahan and Thomas A. Bator for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant James Gutter contends that the judgment must be reversed because the trial court erred in denying his pretrial motion to suppress evidence. We conclude that substantial evidence supports the court’s factual findings, and, applying our independent judgment to the legal issues, we conclude the court did not err in denying the motion. Thus, we affirm the judgment.
BACKGROUND
Appellant was charged with a violation of Health and Safety Code section 11352, subdivision (a), sale or offer to sell a controlled substance, and a violation of section 11351.5, possession of cocaine base for purposes of sale. In addition, the information alleged that appellant had suffered seven prior convictions for which he served prison terms, and had not remained out of prison custody for a period of five years before committing the current offenses. Charged with appellant were three codefendants -- Angela Hill, Marco Anthony Cordova and Dianna Bronson -- who are not parties to this appeal.
Prior to trial, appellant brought a motion to suppress evidence pursuant to Penal Code section 1538.5. At the hearing on the motion, Los Angeles Police Officers Eliana Tapia and Dale Ziesmer testified for the people. Tapia testified that on March 7, 2007, she and other officers were conducting a narcotics investigation, observing the area under the Sixth Street Bridge where Mesquite Street ends in a T. They were watching for possible narcotics sales and use, because police had received complaints about cocaine trafficking in the area.
All further statutory references are to the Penal Code.
Tapia observed codefendant Cordova park his truck and walk under the bridge, where he handed paper currency to codefendant Bronson. Bronson appeared to count it before taking it to codefendant Hill, who was sitting in front of a two or four-person red tent, approximately 40 or 50 feet from Tapia’s location. Tapia then observed Hill place the money into a hand that had emerged from the tent. The hand was withdrawn back into the tent, and approximately 30 seconds later, the hand emerged again and poured some off-white solids into Hill’s hand. Hill poured the off-white solids into Bronson’s right hand, and Bronson walked back toward Cordova. After removing one of the off-white solids, Bronson gave the remainder to Cordova, who placed them into a piece of paper and closed it. He then entered his truck and drove away. Other officers followed and arrested him. Tapia continued to watch the red tent, until Detective Feldtz and Officer Ziesmer approached the tent and Officer Ziesmer entered it.
Tapia testified that she saw at least five other tents in the area, all on city property. They were not searched, and Tapia did not know whether people were living in them. To her knowledge, the tents were not permitted to remain overnight, but she did not monitor the area.
Officer Ziesmer testified that he was working with Officer Tapia and others during the March 7, 2007 investigation. Tapia directed him to check the red tent. The tent was pitched on government property in an area known for narcotics sales. All tents in the area were cleared out daily by the police, and none was permanently located there. Ziesmer testified that it was illegal to pitch tents in that location, and that signs had been posted on the bridge pillars prohibiting people from staying there.
The tent was approximately four feet high with a three-foot opening, and Ziesmer could see directly into the tent as he approached it. From outside the tent, Ziesmer observed appellant seated inside. He also saw a baggie containing off-white solids resembling rock cocaine, a substance he had seen more than 2,000 times before. He asked appellant to exit the tent, and took him into custody when he complied. Ziesmer observed bedding material, a mirror and a razor blade. He did not obtain a warrant.
The trial court denied the motion to suppress. The court found that the tent was not appellant’s home, but a “temporary place where he happened to be.” The court further found that Officer Ziesmer could see the contraband from outside the tent, just minutes after an apparent hand-to-hand transaction, and thus had probable cause to enter.
Appellant was thereafter tried by jury and convicted of both charges. Prior to sentencing, appellant admitted his seven prior convictions, and the court granted his motion to strike them. On September 13, 2007, appellant was sentenced to seven years in prison. He timely filed a notice of appeal the same day.
DISCUSSION
Appellant’s sole contention on appeal is that the trial court erred in denying his motion to suppress evidence. He contends that Officer Ziesmer’s entry into the tent violated his right to be free from unreasonable searches and seizures.
The right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment. (Mapp v. Ohio (1961) 367 U.S. 643, 643-660; People v. Williams (1999) 20 Cal.4th 119, 125.) Section 1538.5, subdivision (a)(1), permits a defendant to move to suppress evidence seized as a result of a warrantless search alleged to have been unreasonable.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] Accordingly, . . . we consider the record in the light most favorable to . . . respondent[] . . . .” (People v. Woods (1999) 21 Cal.4th 668, 673.)
“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ [Citation.]” (California v. Ciraolo (1986) 476 U.S. 207, 211, quoting Katz v. United States (1967) 389 U.S. 347, 360, conc. opn. of Harlan, J.; see also People v. Camacho (2000) 23 Cal.4th 824, 830.) In making this determination, “we ask two threshold questions. First, did the defendant exhibit a subjective expectation of privacy? Second, is such an expectation objectively reasonable, that is, is the expectation [one that] society is willing to recognize as reasonable? [Citations.]” (People v. Camacho, supra, 23 Cal.4th at pp. 830-831, citing Bond v. United States (2000) 529 U.S. 334, 337-338 & California v. Ciraolo, supra, 476 U.S. at p. 211.)
Appellant contends he had a reasonable expectation of privacy in the tent, which he claims to have inhabited, and that there were no exigent circumstances excusing the search without a warrant. The circumstances were not exigent, he argues, because once he was taken into custody, there was no one left inside to destroy or conceal evidence; thus, the officers had time to secure the area and obtain a warrant.
The prosecution bears the burden of establishing that a warrantless search is justified by some exception to the warrant requirement. (People v. Camacho, supra, 23 Cal.4th at p. 830, citing Vale v. Louisiana (1970) 399 U.S. 30, 34.) Respondent contends that because the contraband was in plain view, the officer could lawfully make a warrantless entry to seize it. However, officers must have a lawful right of access in order to seize an object in plain view. (Horton v. California (1990) 496 U.S. 128, 136-137.) Nonetheless, an officer needs no warrant or exigent circumstances to enter a place where there is no reasonable expectation of privacy. (See People v. Thomas (1995) 38 Cal.App.4th 1331, 1335 (Thomas) [“where there is no expectation of privacy, the police may enter on a hunch or for no good reason at all”].) It is the defendant who bears the burden of establishing a legitimate expectation of privacy in the premises where the object was seized. (People v. Rivera (2007) 41 Cal.4th 304, 308; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1196.)
Appellant contends he had a reasonable expectation of privacy in his tent because he lived there. He contends that the prosecution bore the burden to prove that he did not live there, and argues that it failed to meet its burden because there was no evidence that the tent had not been in the same location for two months prior to his arrest. It is undeniable that a tent is a temporary structure, and appellant does not dispute that the tent was on public property. Thus, as part of appellant’s burden to establish that he had a reasonable expectation of privacy in the tent, he was required to establish, at a minimum, that he was using the tent as a residence, not simply for his commercial purposes. (See Minnesota v. Carter (1998) 525 U.S. 83, 88, 90-91 [defendant in another’s apartment solely to package cocaine].)
Appellant did not carry his burden. He did not testify that the tent was his residence, nor did he offer evidence of how long the tent had been in the location. The principal evidence of his occupancy was bedding, which could as easily have been present for his comfort while selling drugs from the location. In contrast, the prosecution offered evidence supporting the inference that the tent was not appellant’s residence. Both officers testified that remaining overnight in the area was prohibited, and Officer Ziesmer testified that tents in the area were cleared away daily. The evidence supported the trial court’s conclusion that appellant had failed to establish the tent was his residence.
The two federal cases on which appellant relies are inapposite. (See U.S. v. Sandoval (9th Cir. 2000) 200 F.3d 659 (Sandoval); U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673 (Gooch).) In Sandoval, the court found that the defendant had a reasonable expectation of privacy in his tent because it was located in a remote, inaccessible area heavily covered by vegetation, it was closed on all four sides, and the defendant had left a personal item -- prescription medicine -- inside the tent. (Sandoval, at p. 660.) The court held that the defendant’s expectation of privacy was objectively reasonable because although the tent was pitched on government property, the land was unmarked and thus did not appear to prohibit camping or require permission. (Id. at pp. 660-661.)
The court did not indicate how long defendant had been camped in that location, but it appears to have been for some time -- long enough to cultivate a marijuana crop. (See Sandoval, supra, 200 F.3d at p. 660.)
In Gooch, supra, 6 F.3d at page 675, the court found that the defendant had a reasonable expectation of privacy in his closed tent, pitched at a public campground, in which he had been living for several days. The court held “that the closed tent was a ‘non-public’ place for purposes of Fourth Amendment analysis. . . . [Citation.]” The court explained: “By establishing a campground, the state created a situation where campers were invited to come to set up a tent. The campers could reasonably assert a legitimate, though temporary, interest in their privacy even in this short-term ‘dwelling.’ A guest in Yellowstone Lodge, a hotel on government park land, would have no less reasonable an expectation of privacy in his hotel room than a guest in a private hotel, and the same logic would extend to a campsite where the opportunity is extended to spend the night. [Citations.]” (Id. at p. 678.)
The cited cases do not support appellant’s contention that he had a reasonable expectation of privacy in the tent. Although both cases involved tents pitched on public property, the similarity to the instant case ends there. Unlike in Sandoval and Gooch, appellant presented no evidence that he lived or camped in the tent. Further, unlike in Sandoval and Gooch, appellant’s tent was open, with the contraband in plain view, and it was pitched not in a remote area, but adjacent to an urban street where it was clear there was no consent to camp -- and where posted signs expressly prohibited staying in the area.
Appellant contends that the fact that his tent was open was a “minor variance,” and suggests that we disregard it. The tent’s opening and the unobstructed view of the contraband inside helped to erode appellant’s claim that he had a subjective expectation of privacy. We may not disregard evidence favorable to the trial court’s ruling. (See People v. Woods, supra, 21 Cal.4th at p. 673 [record reviewed in light most favorable to court’s determination].)
Even had appellant presented evidence that he lived in the tent, the facts of this case would more closely resemble those of People v. Thomas, supra, 38 Cal.App.4th 1331. There, police officers opened a 4-sided, 4-by-12 foot box used as a makeshift shelter on a public sidewalk by the homeless defendant, who testified at a suppression hearing that he had been living in the box for several months. (Id.at p. 1333-1334.) The placement of the shelter was in violation of a Los Angeles Municipal Code section that prohibited blocking sidewalks. (Id. at p. 1333.) The court held: “Although it is true . . . that the Fourth Amendment may protect a person’s objectively reasonable expectation of privacy in a temporary or impermanent residence in a permissibly occupied area [citing Gooch, supra, 6 F.3d at p. 678], that rule does not apply to a box illegally placed on a public sidewalk.” (People v. Thomas, supra, 38 Cal.App.4th at p. 1334; see also Amezquita v. Hernandez-Colon (1st Cir. 1975) 518 F.2d 8, 11 [no expectation of privacy in structures kept on public property after an express ban].)
Appellant points out that respondent did not seek judicial notice of any ordinance in the trial court. However, Officer Ziesmer testified without objection that remaining overnight was illegal in the area, and appellant does not contend otherwise.
Similarly here, the city had expressly banned camping by posting signs in the area. Appellant does not dispute he pitched his tent on public property. The posted signs, along with the police practice of clearing out tents daily, showed not only that camping was prohibited, but that there was no express or implied consent to camp or reside in the area despite the prohibition.
Appellant contends that the evidence was insufficient to prove that the signs prohibiting remaining under the Sixth Street Bridge had been posted, because there were no photographs of them admitted into evidence. With this argument, appellant appears to invoke the secondary evidence rule, which prohibits oral testimony to prove the contents of a writing. (See Evid. Code, § 1523.) Appellant may not make a secondary evidence objection for the first time on appeal. (People v. Armstrong (1991) 232 Cal.App.3d 228, 242.)
In sum, appellant did not meet his burden to establish that he resided in this tent or that he otherwise had an objectively reasonable expectation of privacy in the tent. The trial court did not err in denying the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.